by Lisa Keen

Many media outlets reporting on the oral arguments in
Tuesday's U.S. Supreme Court case
Masterpiece
Cakeshop v. Colorado Civil Rights Commission said the court's
pivotal vote from Justice Anthony Kennedy seemed to be leaning away from the
pro-LGBT trend he has established for years.

The
Associated
Press said Kennedy seemed "conflicted." The
New York
Times said he said things favorable to both sides in the case. The Scotusblog
analysis by Amy Howe headlined it most bluntly: The majority was "leaning
toward ruling for Colorado baker."

LGBT legal activists and their organizations were quieter
than usual. Those who did comment on the record seemed cautiously optimistic.
But the court's
transcript
of the proceeding betrayed how unnervingly unpredictable the outcome of this
dramatically important case is.

Justice Sonia Sotomayor asked the most questions of the
morning, primarily aimed at shooting holes in the arguments of the attorney for
the Colorado baker, Jack Phillips. Phillips was just one of several business
owners the Alliance Defending Freedom recruited who was willing to refuse
service to a gay couple. In 2012 in Colorado, same-sex marriage was not yet
legal but it was also against state law to discriminate based on sexual
orientation in public accommodations.

Chief Justice John Roberts posed the second greatest number
of questions Tuesday. A moderately conservative member of the bench, he was
occupied with bolstering the arguments of the baker's ADF attorney, Kristen
Waggoner.

Joining Sotomayor in challenging the ADF arguments were
Justices Ruth Bader Ginsburg and Elena Kagan, along with occasional remarks by
Justice Stephen Breyer.

Justices Samuel Alito and Neil Gorsuch joined Roberts on the
baker's side. With Justice Clarence Thomas being a historically reliable vote
against the interests of LGBT people, the tally stood at 4-4, leaving Kennedy,
once again, as the uncertain but decisive vote.

Kennedy has been a fairly reliable vote in support of equal
rights for LGBT people in recent years. But during Tuesday's oral argument, he
seemed to turn the tables. He singled out an LGBT activist on the Colorado
Civil Rights Commission for admonishment, saying she had been disrespectful and
intolerant of Phillips' stated religious beliefs. He wondered out loud whether
the gay couple could not have just gone to another bakery to avoid the
conflict. He expressed concern about the commission's order that Phillips
require his staff to undergo training to ensure compliance with the state law.
And he asked U.S. Solicitor General Noel Francisco, representing the Trump
administration in support of the baker, "If you prevail, could the baker
put a sign in his window, 'We do not bake cakes for gay weddings?'"

Ria Tabacco Mar, an American Civil Liberties Union attorney
and counsel of record for the gay couple – Charlie Craig and David
Mullins – said she thought Kennedy's questions gave "no
indication" of how he will vote in the case. She took heart from Kennedy's
comment that putting a sign in the bakery's window might be an "affront to
the gay community."

"He did not express any concern about applying
anti-discrimination laws to conduct motivated by religious beliefs in general,
which is the broader question at stake," said Mar. But Kennedy's comment
about the LGBT member of the Colorado commission, she said, raises the
"possibility" that he might urge fellow justices to send the case
back for reconsideration.

All of the justices (with the exception of Thomas, who
almost never speaks during oral arguments) were very actively engaged in the
discussion, which ran 30 minutes longer than the one hour allotted.

Legal question

The specific legal question was whether a person's First
Amendment right – to speech, religion, expression, or association –
trumps laws prohibiting discrimination based on sexual orientation in public
accommodations. The implications go much broader than the single issue of
marriage licensing. Public accommodations include a wide variety of businesses
serving the general public – restaurants, hotels, taxicabs, and funeral
homes, to name a few.

The conflict between discrimination and the First Amendment
has arisen before in the context of white business owners in the South who said
their religious beliefs prevented them from serving black customers the same as
white customers.

"The reason we're asking these questions," said Breyer
at one point, "is because, obviously, we want some kind of distinction
that will not undermine every civil rights law ... including [those protecting]
African-Americans ... Hispanic Americans [and] everybody who has been discriminated
against in very basic things of life – food, design of furniture, homes,
and buildings."

"That is not my theory," replied Waggoner. She
started to explain, as she had in written briefs, that she was trying to say
that the free exercise or speech claim could trump the public accommodation
laws when the business owner's objection is not about the "person"
but about the conduct the person is engaged in.

Phillips has said numerous times that he refused to sell the
gay couple a cake, not because the men were gay, but because they were celebrating
their marriage. And Phillips said his understanding of the Bible is that
marriage between same-sex partners is wrong.

But Waggoner struggled to answer Kagan's question about
whether the same sort of argument would work "if your client instead objected
to an interracial marriage?"

That was a "very different case," said Waggoner.

"You are just saying race is different?" asked
Kagan.

"I think race is different for two reasons," said
Waggoner. One reason, she said, is that, with race, the objection is over
"who the person is, rather than what the message is." The other
reason, she said, is that courts require "compelling" reasons for
treating people differently based on race. There has been no such heightened
scrutiny for discrimination based on sexual orientation.

Sotomayor asked Waggoner how she would address the claim
that "actually, what is happening here may superficially look like it's
about the message [religious beliefs about marriage for same-sex couples] but
it's really about the person's identity [being gay]."

Waggoner said the state had the power to decide "what
speech is offensive and what is not" and that it was the state that
discriminated against Phillips' viewpoint.

Constantly turning tables

The idea that it was the baker, Phillips, who suffered
discrimination rather than the one who inflicted it, gained some traction with
Kennedy and the conservative justices.

Kennedy singled out one of the Colorado Civil Rights
Commission members – LGBT activist Heidi Hess – for criticism. He
said he read in ADF's appendix that Hess "says freedom of religion used to
justify discrimination is a despicable piece of rhetoric."

"Suppose we thought that, in significant part, at least
one member of the commission based [her] decision on the grounds of hostility
to religion," said Kennedy to Colorado Solicitor General Fred Yarger.
"... Suppose we thought there was a significant aspect of hostility to a
religion in this case. Could your judgment [against Phillips] stand?"

(It is worth quoting here
what Hess
actually said: "Freedom of religion and religion has been used
to justify all kinds of discrimination throughout history, whether it be slavery,
whether it be the Holocaust ... we can list hundreds of situations where
freedom of religion has been used to justify discrimination. And, to me, it is
one of the most despicable piece of rhetoric that people can use – to use
their religion to hurt others.")

Yarger said there might be a problem if the "entire
proceeding" against Phillips "was begun because of an intent to
single out religious people. ..."

But "that was not the fact here," he said.

Gorsuch jumped in to say that there had been a second
commissioner out of the seven who had said something similar to Hess.

Yarger again said he didn't think the complaint against
Phillips originated out of a desire by the state to punish religious people and
noted that the state law also prohibited discrimination based on religion. But
Alito interjected that he believes there "appears to be a practice of
discriminatory treatment based on viewpoint." As evidence, he noted that
the Colorado commission did not take any action against three bakers who
refused to decorate cakes with a message opposing same-sex marriage.

"But when the tables are turned and you have the baker
who opposes same-sex marriage, that baker may be compelled to create a cake
that expresses approval of same-sex marriage," said Alito.

Yarger reminded the justices that the commission at no time
compelled Phillips to create a cake that expressed approval of same-sex
marriage. It said only that he had to sell to same-sex couples the same things
he made available to male-female couples.

"Do you disagree with the fact that [Phillips] would
not sell to anybody a wedding cake that expresses approval of same-sex
marriage?" asked Alito.

"What he may not do, as a public accommodation that
offers to the public," said Yarger, "is decide that he won't sell
somebody a product that he would otherwise sell because, in his view, the
identity of the customer changes the message."

When Alito protested that Phillips didn't discriminate based
on the couple's identity but because of their "message," Yarger said
the message "depended entirely on the identity of the customer ..."

Kennedy, when he rejoined the discussion he initiated about
a commissioner's statement he perceived to be hostile to religion, waxed
philosophic.

"Tolerance is essential in a free society, and tolerance
is most meaningful when it's mutual," said Kennedy. "It seems to me that
the state in its position here has been neither tolerant nor respectful of Mr.
Phillips' religious beliefs."

Then in a somewhat strange addendum, Kennedy seemed to
suggest that the gay couple should have shown some tolerance and respect, too:
"We assume there were other shops – other bakery shops
available."

Yarger said the state legislators had spent years working on
the legislation and made various exceptions for places of worship. But ultimately,
he said, the legislators "decided we can't make exceptions here for
same-sex people who deserve the same protections if we wouldn't make those same
exceptions for discrimination based on race and sex and religion."

(It is worth noting here that Kennedy wrote the 1996
decision in
Romer v.
Evans that struck down a Colorado law, Amendment 2, because it
barred LGBT people "from securing protection against the injuries that
these public accommodations laws address." David Cole, the ACLU attorney
representing the gay couple in Tuesday's argument, was echoing Kennedy's Romer
decision when he told the court that to allow a business to refuse service to a
couple because they are gay "would be to constitutionally relegate gay and
lesbian people to second-class status ...")

Cake is art, hair and make-up are not

As uncertain as Kennedy's vote is in Masterpiece, there was
still much to take away from the sparring by the other justices with the
attorneys in the case.

In response to Waggoner's claim that the baker's cake made
him a de facto speaker at the gay couple's wedding, Ginsburg asked for more.
She noted that, certainly it can be said that the couple who is marrying speak
at a wedding, as does the officiant.

"But who else speaks at a wedding?" she asked.

"The artist speaks," said Waggoner. "It's as
much Mr. Phillips' speech as it would be the couple's."

"Who else, then?" asked Ginsburg. "Who else
is an artist [engaging in speech at the wedding]? Say, the person who does
floral arranging, owns a floral shop? Would that person also be speaking at the
wedding?"

Yes, said Waggoner, assuming the floral arrangements are
custom-made.

"How about the person who designs the invitation,"
asked Ginsburg.

"Yes," said Waggoner.

"Or the menu for the wedding dinner?"

Again, Waggoner said yes.

But when Kagan asked about the hair stylist, Waggoner replied,
"Absolutely not."

"There's no expression or protected speech in that kind
of context," she said.

Why not, asked Kagan. "It's the makeup 'artist.'"

Waggoner tried to explain the difference. She said that,
when the court "is looking at whether speech is involved, it asks the
question of, 'Is it communicating something and is it analogous to other
protected forms of speech ..."

Kagan said a makeup artist "might feel exactly as your
client does – that they're doing something that's of great aesthetic
importance to the wedding and that there's a lot of skill and artistic vision
that goes into making somebody look beautiful." What's the difference, she
asked.

Waggoner said the difference is that make-up is "not
speech."

"Some people may say that about cakes, you know,"
said Kagan.

Waggoner proceeded to say that, not only was a hairstylist
and a make-up artist not engaged in "speech," neither was a tailor or
a wedding dinner chef.

"Whoa!" said Kagan. "The baker is engaged in
speech but the chef is not engaged in speech?"

Solicitor General Francisco had to navigate a tightrope,
too. He expressed concern about the right of artists to be able to control the
message of their work and suggested Colorado's law might force an African-American
sculptor to design a cross for use in a Ku Klux Klan event. But then he seemed
to suggest that the baker could refuse to sell a wedding cake to a gay couple
only if the couple asked for a custom-made cake.

Shannon Minter, legal director for the National Center for
Lesbian Rights, said he was "optimistic that a majority of the court will
not create any new constitutional exceptions to anti-discrimination laws."